UPDATE 20/04 | Latest Position in Immigration Appeals & JRs during Coronavirus Crisis

HJT Training will keep our clients and readers up-to-date on the latest news developments during the public health crisis via a series of webinars. We will also summarise the latest information regarding the status of appeals and JRs in immigration cases. 

Immigration Tribunal positions arise in the context of the Pilot Practice Direction across all Tribunals from the Senior President. The Direction emphasises a general objective to determine appeals without a hearing where possible, where this is likely to lead to a decision in the applicant’s/Appellant’s favour.

First-tier Tribunal appeals

1. Asylum appeals to be lodged online as per Presidential Practice Statement No 1 2020.
2. The FTT has published Help for Users which explains that all substantive hearings are now adjourned. The online digital process which was under way pre-pandemic is being rolled out more widely; digital files are being developed for all outstanding cases.
3. FTT is currently triaging all appeals by way of Case Management Reviews to determine whether a remote hearing or a decision without a hearing is appropriate.
4. The FTT Procedure Rules have now been amended to include a new Rule 4A permitting determination of appeal without hearings where three conditions are satisfied.  

• The matter is urgent;
• It is not reasonably practicable for there to be a hearing (including a hearing where the proceedings would be conducted wholly or partly as video proceedings or audio proceedings);
• It is in the interests of justice to do so.

These are additional powers to those already available to determine appeals without a hearing. This is a time limited power that will ensure only for so long as the Coronavirus emergency statutory regime remains in force.

5. Directions to follow for cases requiring a hearing (including those recently adjourned). Different versions of FTT directions have been seen whilst a routine settles down, typically they provide:

              – Appellant’s skeleton argument and bundle to be sent 15 days from the Notice being sent: efficiency required in bundles (eg links to authorities, SSHD guidance) and permission needed for bundle exceeding 50 pages

             – SSHD to state position vis-á-vis skeleton via a Response, within 10 days of receiving the Appellant’s skeleton argument

            – Parties make submissions on whether hearing required

            – No Response = FTT assumes SSHD takes no issue with case put in skeleton argument

6. The immigration bar wrote a letter last week re “at risk” skeleton arguments if SSHD concedes appeal pre-hearing public funding remote hearings (as well as arguing that oral evidence inapposite in most immigration appeals), and MoJ/LAA statement of 3 April 2020 states

“We will also align legal aid fees for First Tier Tribunal immigration and asylum appeals with HMCTS’ move to an online system for these cases.”

When considering issues surrounding the ability to put one’s case fully, the FTT will need to have regard to the overriding objective (r4 of Procedure Rules) which requires cases be dealt with fairly and justly which in turn requires the case to be dealt with having regard to: the resources of the appellant; ensuring so far as practicable that the appellant is able to participate fully in the proceedings and seeking flexibility in the proceedings.

7. A letter of 17 April 2020 from UKVI’s Appeals, Litigation & Admin Review explains that practitioners can now access the MoveIt portal for serving and accessing appeal bundles. This is a secure cloud-based file sharing system which the SSHD and Appellants in the FTT may use to serve one another with their bundles; the system uses folders protected by passwords. You can subscribe to the service via a form available on the ILPA website here (ILPA members only, of course).
8. President Clements in his letter to stakeholders of 17 April 2020 encourages practitioners to register for the CCD (“core case data”) platform: “ … CCD will be a straightforward way of making evidence available in digital or electronic form, of communicating with the Tribunal and each other reliably and without delay and of deciding appeals and achieving prompt promulgation of decisions.”
9. Realistically it must be assumed that FTT hearings will not pick up in significant numbers for many weeks.
10. The High Court (Chancery Division) issued an interesting decision in Blackfriars Ltd, Re [2020] EWHC 845 (Ch) (06 April 2020), noting that

• the statutory regime for lockdown indicates that the pursuit of judicial business is a priority which would justify the travel of witnesses and representatives to a solicitor’s office so long as social distancing was observed throughout, as well as justifying IT professionals attending someone’s home to ensure that the right IT was in place.
• The participation of vulnerable individuals would need to be managed as the circumstances required.
• Judges should remember that the perception of court users of the trial process was an important consideration

11. Doubtless the FTT will take the same sensible approach to parties and witnesses and their ability to prepare for a hearing as does the Employment Tribunal, whose useful guide recognises that “it may be difficult or impossible for you to prepare for a hearing in July or August, because of illness, self-isolation or social distancing.”
12. Here are useful Contact details for hearing centres for appeals and bail.

Upper Tribunal appeals

13. Currently triaging cases. Relevant Practice Direction here – latest daily update here

• All cases granted permission to appeal to be reviewed
• Provisional decision to be made as to whether “error of law” stage needs oral hearing: presumption is decision on “error of law” without hearing
• If UT thinks that is appropriate, will invite submissions, 21/28 days from that notice being given Appellant/Respondent must produce written submissions/Response, and if either objects to decision without a hearing, then must give reasons 21 days from notice
• However in practice intelligence from around the country is that senior POs are saying that institutionally they do not the technology in place (or what they have access to is insufficiently secure): so error of law hearings may end up proceeding via audio
• Where error of law established, continuation hearings to follow, presumption will be remote hearing, otherwise relisting for normal oral hearing in due course

14. The UT Rules have also been amended (r5A) in the same terms as that cited above for r4A of the FTT Rules, to allow for determination of hearings where the matter is urgent, it is impracticable to hold a hearing remotely or otherwise, where this is in the interests of justice.
15. There is a thoughtful blog on the value of oral legal submissions in error of law hearings from Alasdair Mackenzie here, emphasising several advantages over paper applications. One is the importance of dialogue between the Judge and the advocates in order to ensure submissions are directed at relevant issues and to give an effective opportunity to rectify any mistaken apprehensions from the bench, another is the need to focus on the Appellant’s understanding of the proceedings: after all it is their case. Alasdair reminds of us Sir John Laws in Sengupta v Holmes [2002] EWCA Civ 1104 §38:

“‘oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by a judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the centre of it. […] It is a commonplace for a hearing to start with a clear expression of view by the judge or judges, which may strongly favour one side; […] [that means that the advocate] knows where he [sic] is, and the position he has to meet. He often meets it.”

Remote hearings

16. See the general guidance HMCTS telephone and video hearings during coronavirus outbreak. Also note the useful guidance How to join telephone and video hearings. And remember: no smoking on screen!
17. An insightful joint note is linked from this Tweet from the Family Law Bar Association from the Lord Chief Justice, Master of the Rolls, and President of the Family Division to judges in the family and civil courts updates the judicial thinking after a few weeks of trialling remote hearings:

• The most successful remote hearings are where the Judge is in a staffed court room and other parties join by various means supported by IT; video hearings are more successful than merely audio ones;
• Remote hearings appear to be more tiring than oral ones, and it is harder to ensure formality of proceedings;
• Generally speaking, if all parties resist a remote hearing, this is a very powerful factor against so proceeding; and even the agreement of all parties is not necessarily a green light to going ahead remotely; in general it has to be recognised that it is not business as usual.
• The Reform Project (by which greater use of IT in court proceedings has been trialled) had already shown that factors such as fairness, justice, the importance of the issues and the ability of a judge to assess witnesses in a non-court room setting combined to indicate that remote hearings would not be appropriate for many cases;
• Particularly careful consideration will have to be given to remote hearings involving witnesses for whom English is not their first language.

18. Relevant issues are likely to be

• Access of Appellant and witnesses to IT and ability to use it
• Confidentiality of proceedings in shared accommodation: family members, children, other asylum seekers with similar or antagonistic claims could overhear something inappropriate or private
• Risk of contamination of evidence due to witnesses over-hearing one another
• The presentation of those giving oral evidence if not used to speaking remotely

19. You can see the Judge following the Remote hearing commencement protocol in GOPM [2020] EWFC 27: confirming that only authorised recording is permitted, that everyone is in a quiet and private space without anyone else present and that they all understand they can rejoin the proceedings by clicking on the same link previously used. The Judge will invite individuals to speak, microphones should otherwise be muted, and urgent interventions can be heralded by raising a hand.
20. Note that Skype for business (“SKB”) is not the same as Skype. SKB is designed for businesses subscribing to Office365. It is possible to join a SKB or a Teams meeting (the preferred options being used by courts and tribunals presently) without a subscription. You must download the Skype meetings app and thereafter can just join as a guest.
21. The new era of remote hearings potentially impinge on the “open justice” principle. Open justice requires that anyone can watch an immigration appeal, unless it is held in private, something traditionally reserved to be a last resort. Thus there is a new Rule 27(2A) which provides for the FTT to direct that a hearing, or part of it, is heard in private. This will be where all four of these criteria are satisfied.

“(a) the Tribunal directs that the proceedings are to be conducted wholly or partly as video proceedings or audio proceedings;

(b) it is not reasonably practicable for such a hearing, or such part, to be accessed in a court or tribunal venue by persons who are not parties entitled to participate in the hearing;

(c) a media representative is not able to access the proceedings remotely while they are taking place; and

(d) such a direction is necessary to secure the proper administration of justice.”.

22. Because of the importance of securing open justice by one means or another, the FTT is likely to record hearings as one method so to do. Thus there is now a new Rule 27A which requires the FTT to direct recording where that is practicable, identifying the means of so doing in its direction. This applies only to remote hearings under the Rule cited above: both where they are heard fully in private, and where they are “private” save for the involvement of a media representative who is able to access them remotely.
23. The Bar Council has produced Guidance on Videoconferencing software, data protection and confidentiality. Another useful resource is the Inns of Court Principles for Remote Advocacy which address every aspect of preparing cases. Good tips are

• have a 2^nd or even 3^rd screen available with the electronic bundle on it
• agree an emergency form of communication such as mobile numbers in the event the broadband link fails
• agree a speaking protocol via raising hands and muting oneself in between one’s own contributions, maintain eye contact with the camera, sit sensibly close to the screen in a well-lit space, and bear in mind that some cameras may record wider views than you see on screen
• ensure that the court and parties share the same version of the e-bundle and that you have the knowhow to access different parts of the bundle at the same time (eg where you are looking something up whilst keeping tabs on a submission)
• bear in mind that written advocacy is likely to play a more significant role in backing up oral submissions in remote hearings than other hearings: and oral submissions should be more focussed than normal

Bail hearings

24. Hearing notices typically state

• Date and time of telephone bail hearing will follow
• Between Judge and the representatives
• 24 hours before: email bailshattoncross@justice.gov.uk with telephone number & any objection why “cannot” participate in this kind of hearing
• Applicant may be absent (unless unrepresented)
• Financial Condition Supporters may be absent but sometimes arrangements are suggested by which they might provide relevant information
• Hearing may proceed if you miss the call

25. Another hearing notice proposed determining the bail application without a hearing on the basis of having already made a provisional decision on the basis of the material already filed. The FTT Help for Users explains that “minded to grant” decisions are being issued to the SSHD in order to determine whether a hearing is sought to avoid unnecessary hearings. Feedback from the sector generally indicates that most bail applications are being granted presently.
26. Issues to address will include:

• The importance of concisely stating the case for release from detention
• Ensuring that all information reasonably available is obtained before applying for bail
• Seeking contact with the Home Office representative to ensure that all relevant issues are raised and understood
• Ensuring the hearing is limited to those issues previously notified
• Remember that r40 of the FTT Procedure Rules requires that “If the Secretary of State opposes a bail application, the Secretary of State ​must provide the Tribunal and the bail party with a written statement of the reasons for doing so— (a) not later than 2.00 pm on the working day before the hearing”
• Ensuring that the bail bundle includes the best possible evidence from Financial Condition Supporters including witness statement evidence of a person’s good character

Detention issues and Covid-19

27. There are various information sources raising concerns about Covid-19 and the extra risks it poses to immigration detainees. Detention is a stressful experience at the best of times and many detainees are already vulnerable with mental health issues.

• 10 organisations wrote to The Guardian recording their concerns.
• A leaked letter from G4S records a plan to place vulnerable immigration detainees at risk of dying if they contract Covid-19 in solitary confinement for at least 3 months
• The Detention Action challenge (Detention Action and MR v Secretary of State for the Home Department (CO/1101/2020)):
• Claimants argued that greater protective measures were required in detention and that all detainees (except those posing a “high risk” to the public) from countries not accepting returns at present should be released. This was requested by way of urgent relief before the legal challenged proceeded further. Expert evidence from Professor Coker identified serious dangers to a closed community and included movements of individuals in and out of the centre, overcrowding and poor ventilation and hygiene. Some of the evidence appears here.
• This interim relief application was refused on 25 March 2020, because sufficient protections were now in place, and because only the strongest evidence could justify releasing individuals before the claim was substantively heard and the SSHD was still reviewing cases. The existing systems adequately protected ECHR rights to life and to be free from inhuman and degrading treatment, allowing for the possibility of admission to hospital where required. The evidence of problems from detainees was essentially anecdotal and it was not for the court to second guess operational decisions.
• There were nevertheless positive developments. Some 350 individuals were released after the action was lodged, and there are 500 fewer detainees than at the start of the year (736 at the last count). The SSHD introduced further protective measures for screening and monitoring of detainees, hygiene and social distancing.
• The Home Office has also halted detention commencing for persons liable to administrative removal from these countries:

     -Algeria, Cameroon, Egypt, Kenya, Libya, Mauritania, Morocco, Somalia, Zimbabwe

     -China, India, Pakistan, Sri Lanka

     -Jamaica

     -Europe: Albania, Austria, Bulgaria, Croatia, Cyprus, Italy, Poland, Ukraine

     -Afghanistan, Iraq, Jordan, Kuwait, Lebanon, Saudi Arabia, Turkey

• See also this recent blog post from Miranda Butler of Garden Court.
• The EU Human Rights Commissioner has pointed out that given that detention is focussed on the prospects of removal it is hard to imagine Dublin 3 returns proceeding in present circumstances. The Detention Action case revealed that returns to these countries are not realistic within a reasonable timescale:

Austria (unless tested negative for COVID-19), Croatia, Cyprus, Czech Republic, Denmark, Finland, Greece, Italy, Latvia, Lichtenstein, Luxembourg, Netherlands, Portugal, Poland, Romania, Slovakia, Slovenia, Spain.

The Commissioner added that “Member states should also ensure that those released from detention are given appropriate access to accommodation and basic services, including health care. This is necessary to safeguard their dignity and also to protect public health in member states.”

• Bear in mind the vulnerable as identified by NHS England in their Advice for people at higher risk:

    -lung conditions, such as asthma, COPD, emphysema or bronchitis

    -heart disease, such as heart failure

    -chronic kidney disease

    -liver disease, such as hepatitis

    -conditions affecting the brain and nerves, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy

    -diabetes

    -problems with your spleen – for example, sickle cell disease, or if you’ve had your spleen removed

    -a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy

   -being very overweight (having a BMI of 40 or above)

• Doubtless it could be argued that another human right that might be in play in these cases is a person’s private life, in turn including considerations identified in the international law material available regarding health, see eg The UN Human Rights Commissioner’s Right to Health Fact Sheet 31

28. The lawful exercise of detention powers require a person to be removable. Plainly there are now a series of barriers to removal. You can find the latest available information on travel on the FCO website.

Judicial review and Administrative Court

29. Latest guidance on lodging JR claims here. Filing by email is the good news. But remember to

• Give an undertaking re paying the fee via account (now’s the time to open a PBA account with the Court) or cheque in your covering email
• The bundle should not exceed 24MB and if it does, a core bundle is necessary containing claim form, grounds and essential documents, with further bundle(s) no bigger than 24MB provided separately
• For urgent claims, electronic bundle is not to exceed 20MB by way of a single pdf which includes the index which in turn must be hyperlinked to documents to which it refers, numbering must be coherent, the text must be defaulted to a 100% display setting and 200-300 dpi resolution, and the editing option should be kept open to allow the addition of judicial comments,

Issuing claims

30. Urgent claims to be issued between 9:30 and 4:30pm to

administrativecourtoffice.immediates@hmcts.x.gsi.gov.uk

With small bundle of super-essential documents. Outside those times it is the usual out-of-hours telephone procedure  

31. Routine claims to be issued at

administrativecourtoffice.generaloffice@hmcts.x.gsi.gov.uk

32. Decisions on paper applications such as permission decisions will resume shortly but decision times likely to be longer.
33. Responses to claims/pleadings and interlocutory applications are to be lodged at generaloffice@hmcts.x.gsi.gov.uk

Hearings

34. Information received on the ground is that oral permission hearings are likely to resume in May/June; non-urgent hearings possibly not until early 2021, more urgent ones for summer 2020 onwards
35. Most if not all hearings will be conducted by Skype or phone, and where possible will be conducted as public hearings
36. Give realistic time estimates bearing in mind IT teething issues

Judicial review and Upper Tribunal

Daily updated Guidance here

Issuing claims

37. Non urgent matters to be lodged by post (and then to be processed when UT’s work capacity increases)
38. Urgent matters using Form T483 to be lodged via londonjr@Justice.gov.uk – though the “usual” arrangements of faxing in detained cases. The usual system for urgent claims out-of-hours continues: ie ring the Administrative Court emergency number for applications made after 4pm on working days and on the weekend. Para 34 provides:

“If an application for urgent or immediate consideration has been refused by UTIAC without a hearing, the applicant can ask for the matter to be reconsidered at a hearing. During the pandemic, this hearing will take place by telephone with a judge.”

39. As mentioned above, the UT Rules have also been amended (r5A) in the same terms as that fully set out for r4A of the FTT Rules above. This seems to offer a real benefit for some UT JRs, because whilst it is hard to see that many substantive immigration JRs could be finally determined via a written procedure alone, one can imagine that JRs seeking interim relief could be determined using this rule. Until now, the UT always needed a hearing to determine any JR matter. It may be that very urgent renewals which might not be realistically able to receive an oral remote hearing could nevertheless still be reconsidered via this further “on the papers” stage.
40. The UT Practice Direction here addresses JR proceedings.

Court of Appeal

41. As per the urgent business enquiries document: urgent applications only: ie those where it is essential there be a substantive decision within 7 days.
42. Urgent applications should only be sent by email between 9am and 4.15pm to: urgentwork@justice.gov.uk
43. Fee must be paid within 7 days (or one must complete the relevant “help with fees” application).

Note

44. Hat tip to the Public Law Project and to ILPA for all their work on the issues above.

Information posted by HJT on behalf of Mark Symes